ADA & Disabilities, Leave Management, Policy, and Compliance

States Expand Pregnancy Accommodation Requirements: Nevada and Washington

This year at least five states (Connecticut, Massachusetts, Nevada, Vermont, and Washington,) have considered new pregnancy accommodation laws, and several of these are now on the books. If you have operations or workers in these states, you may have new notice and accommodation requirements.

maternity

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Federal Law Overview and Why These State Laws Matter

Before we dig into the specifics of these new state laws, let’s briefly go over the existing federal requirements in order to better understand why the state laws are coming about.

After all, doesn’t federal law already require pregnancy accommodations? Well, maybe …

Pregnancy accommodation requirements can arise under either of two federal laws. First, of course, the Americans with Disabilities Act (ADA) requires covered employers to provide reasonable accommodations to assist a qualified individual with a disability in performing the essential functions of her job. However, pregnancy by itself isn’t a disability. Rather, the pregnancy must bring about or interact with a related medical condition that is a substantially limiting impairment.

This related impairment may then constitute a qualifying disability for which the employee is entitled to reasonable accommodation. Though the ADA’s definition of “disability” is interpreted quite broadly under the Americans with Disabilities Act Amendments Act (ADAAA), there may still be plenty of “normal” pregnancies that wouldn’t give rise to accommodation rights.

Here, the Pregnancy Discrimination Act (PDA) may come into play. Unlike the ADA, the PDA does not specifically set forth a requirement to provide reasonable accommodations. However, the PDA does require employers to provide equal treatment to women who are affected by pregnancy, childbirth, or related medical conditions. Both case law and Equal Employment Opportunity Commission (EEOC) guidance have interpreted the PDA to require employers to provide reasonable accommodations to pregnant workers if similar accommodations are provided to other workers.

This means that employers that provide accommodations to workers with temporary impairments—impairments that also may not qualify as disabilities under the ADA, but for which the worker may request some workplace assistance or scheduling flexibility—must provide the same accommodation opportunities to pregnant workers who demonstrate similar ability or inability to work.

Together, these two federal laws cover a pretty broad swath of pregnancy-related needs; however, there may still be circumstances where an employee’s entitlement to accommodation isn’t clear.

As a result, many states have passed their own laws to seal up that final gap—circumstances in which an employee may not have a pregnancy-related disability and where the employer may not necessarily offer comparable accommodations to nonpregnant workers, but where an accommodation may still be a reasonable means of allowing a pregnant worker to continue employment.

Nevada

Effective October 1, 2017, the Nevada Pregnant Workers’ Fairness Act requires covered employers to provide reasonable accommodations to employees or applicants for conditions relating to pregnancy, childbirth, or related medical conditions. (Nev. Rev. Stat. Sec. 613.335)

Covered employers. The Act applies to any person with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

Covered conditions. A “condition relating to pregnancy, childbirth, or related medical condition” includes any physical or mental condition intrinsic to pregnancy or childbirth. This specifically includes, but is not limited to, lactation or the need to express breast milk, mastitis or other lactation-related medical condition, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, loss or end of pregnancy, and recovery from loss or end of pregnancy.

Required and prohibited activities. It is an unlawful employment practice for an employer to refuse to provide a reasonable accommodation to a female employee or applicant, upon the employee or applicant’s request, for a condition relating to pregnancy, childbirth, or a related medical condition unless the accommodation would impose an undue hardship on the business of the employer. It is also an unlawful employment practice for an employer to deny an employment opportunity to an otherwise qualified female employee or applicant based on the individual’s need for a reasonable accommodation.

Employers are also prohibited from requiring a covered employee or applicant to accept an accommodation that she did not request or chooses not to accept. This also means that employers are also prohibited from requiring employees to take leave if an available reasonable accommodation would allow the employee to continue working.

Reasonable accommodations. If an employee requests an accommodation, the employer and employee must engage in a timely, good faith, interactive process to determine an effective reasonable accommodation. Accommodations may include a change in the work environment or application process or a change to the way things are customarily carried out that allows the employee or applicant to have equal employment opportunities.

Examples include, but are not limited to:

  • Modifying equipment or providing different seating;
  • Revising break schedules, which may include revising the frequency or duration of breaks;
  • Providing space in an area other than a bathroom that may be used for expressing breast milk;
  • Providing assistance with manual labor if that labor is incidental to the primary work duties of the employee;
  • Authorizing light duty;
  • Temporary transfer to a less strenuous or hazardous position; or
  • Restructuring a position or providing a modified work schedule.

Employers are not required to create a new position that the employer would not have otherwise created unless the employer has done so or would do so to accommodate other classes of employees. The employer is also not required to discharge, transfer, or promote any employee unless the employee has taken or would take such an action to accommodate other classes of employees.

Undue hardship. Employers have the burden of proving that an accommodation would impose undue hardship on the business. To do so, the employer must demonstrate that the accommodation is significantly difficult to provide or expensive, factoring in the nature and cost of the accommodation, the overall financial resources of the employer, the overall business size of the employer, and the effect of the accommodation on the employer’s operations.

Exceptions. The law provides a limited exception for actions that would otherwise be prohibited but for a bona fide occupational qualification.

Additionally, the law provides limited and specific exceptions from providing certain accommodations when the employer is a building contractor licensed under Nev. Rev. Stat Ch. 624. For example, such contractors are not required to provide an area, other than a bathroom, for expressing breast milk if the employee is performing work at a construction job site located more than 3 miles from the regular place of business. These contractors are still encouraged to provide such accommodations to the extent practicable.

Notice. Effective immediately, employers are required to provide written or electronic notice of these rights:

  • To new employees upon hire; and
  • Within 10 days after an employee notifies her immediate supervisor of her pregnancy.

Notice must also be posted in a conspicuous place in the business that is accessible to employees.

Retaliation. Employers may not take adverse action against, or deny an employment opportunity to, an otherwise qualified female employee or applicant due to a request for or use of a reasonable accommodation. Prohibited actions may include, but are not limited to, refusal to promote, requiring the employee to transfer to another position, refusing to reinstate the employee to the same or equivalent position upon return to work, or taking any other action that affects the terms or conditions of employment in a manner that is not desired by the employee.

Washington

Effective July 23, 2017, a new Washington law also requires covered employers to provide reasonable pregnancy accommodations. (SB 5835; Chapter 294, 2017 Laws)

Covered employers. The Washington law also applies to employers with 15 or more employees.

Covered conditions. Pregnancy includes the employee’s pregnancy and pregnancy-related health conditions.

Required and prohibited activities. It is an unfair employment practice for an employer to fail or refuse to make reasonable accommodation for an employee for pregnancy unless the employer can demonstrate that doing so would impose an undue hardship. It is also unlawful for an employer to deny an employment opportunity to an otherwise qualified employee if that denial is based on the employer’s need to make reasonable accommodation.

Washington employers are also prohibited from requiring covered employees to take leave from employment if another reasonable accommodation can be provided for the pregnancy.

Reasonable accommodations. The Washington law lists several examples of reasonable accommodations:

  • Providing more frequent, longer, or flexible restroom breaks;
  • Modifying a no food or drink policy;
  • Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee’s work station;
  • Providing seating and allowing the employee to sit more frequently if her job requires her to stand;
  • Providing for temporary transfer to a less strenuous or less hazardous position;
  • Providing assistance with manual labor and limits on lifting;
  • Scheduling flexibility for prenatal visits; and
  • Any further pregnancy accommodation an employee may request.

Employers are not required to create additional employment (e.g., a new position) that the employer would not have otherwise created unless the employer does or would do so to accommodate other classes of employees.

The employer is also not required to discharge, transfer, or promote any employee unless the employee has taken or would take such an action to accommodate other classes of employees.

Undue hardship. Undue hardship means an action requiring significant difficulty or expense. The Washington law specifically provides that the following accommodations will not be considered undue hardship:

  • Providing more frequent, longer, or flexible restroom breaks;
  • Modifying a no food or drink policy;
  • Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee’s work station; and
  • Limitations on lifting more than 17 pounds.

Except where the accommodation requested is one of the four listed immediately above, employers may request that a covered employee provide written certification from a treating health care professional demonstrating the need for reasonable accommodation.

Notice. The Washington law does not specify employer notice requirements; however, the Department of Labor and Industries will provide educational brochures and materials related to the law and the rights and responsibilities of covered employers and employees.

Retaliation. Employers may not take adverse action against an employee who requests, declines, or uses an accommodation under this law that affects the terms, conditions, or privileges of employment.

Part two of this article will focus on the various laws that will be taking effect for Vermont, Connecticut, and Massachusetts.

HollyHolly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.

She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.

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Questions? Comments? Contact Holly at hjones@blr.com for more information on this topic